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The battle for the right to read obscenity Add to ...

Fifty years ago this week, on Nov. 2, 1960, a jury of nine men and three women in Court No. 1 of London's Old Bailey found Penguin Books not guilty of publishing obscenity. The book was D. H. Lawrence's Lady Chatterley's Lover.

The trial of Constance Chatterley is still considered the most significant obscenity contest in English literary history. For six days in court, the soldiers of moralism - those who believed some people had a right to tell others what they could read and how to behave - battled a pack of liberals who insisted these were individual decisions.

The case was wildly entertaining, studded as it was with the most articulate minds in literature testifying about how truthful a piece of writing has a right to be. The unanimous acquittal was later credited with liberalizing the context for women's rights, divorce, capital punishment, homosexuality and abortion, and even setting the mood for the sex-drenched 1960s, as Philip Larkin (b. 1922) noted in his poem Annus Mirabilis:

Sexual intercourse began

In nineteen sixty-three

(which was rather late for me) -

Between the end of the

"Chatterley" ban and

The Beatles' first LP.

The fracas seems quaint today, when one can hear the words that got Lawrence into trouble any night on cable. So why is it still so moving to read the transcript of the trial that made a nation believe, at least for a while, that a free and open mind was a lovely thing to own?

'To deprave and corrupt'

Prior to Regina v. Penguin Books Limited, English courts used an 1868 standard to define obscene material as that which had a "tendency to deprave and corrupt those whose minds are open to such immoral influences."

Literary merit wasn't a defence. And because jury members had to be property owners, they tended to be middle-class men with middle-class standards, hence obedient to the prosecution and usually willing to convict.

As British lawyer Geoffrey Robertson notes in his introduction to a new edition of Chatterley issued last week for the anniversary, racy literature didn't stand a chance. Radclyffe Hall's The Well of Loneliness was pulped because of a one-line sex scene ("and that night they were not divided") - evidence, the magistrate declared, of "the horrible tendency of lesbianism." Even the Kinsey Report was prosecuted.

Lawrence's novel about an aristocratic woman who, while married to a crippled and impotent war hero, has an adulterous and explicitly sexual affair with Mellors, her profane gamekeeper and servant - had been published in Florence in 1928. Thirty years later, possession of an unexpurgated copy in England was still worth three months in jail.

Publishers and writers had been fighting the law for more than half a decade when, in the spring of 1960, a new Obscene Publications Act was passed by Parliament. Works charged with obscenity now had to be considered as a whole, and could be defended on literary merit. Allan Lane, Penguin's founder, decided to test the new law with an unexpurgated Lady Chatterley.

The Crown was keen to strike him down. "I hope you get a conviction," Harold Macmillan's attorney-general, the anti-intellec-

tual Reginald Manningham-Butler, told his prosecution staff. He was especially incensed that Penguin planned to sell the book for three shillings and six pence, or about 55 cents.

Sex in print was bad enough. But the idea of a noblewoman cheating on her husband and finding satisfaction with a lower-class yob was truly gross.

"This, files reveal," Geoffrey Robertson writes, "was what the upper-middle-class male lawyers and politicians of the time refused to tolerate."

"Is it a book you would even wish your wife or your servants to read?" the lead prosecutor, Mervyn Griffith-Jones, famously said in his opening argument.

We laugh now - a few members of the jury reportedly laughed then.

But the same ruling-class consciousness continues to guide censoring hands in the Middle East (ask Salman Rushdie); in China, where the Internet is censored; in India, where Rohinton Mistry's Such a Long Journey was recently banned at Mumbai University and award-winning author Arundhati Roy is under threat of arrest; and in Canada (where the Canadian Jewish Congress succeeded in challenging Deborah Ellis's Three Wishes: Palestinian and Israeli Children Speak because some of the kids in it referred to Israeli brutality).

The truth? We can't handle the truth, apparently.

Mr. Griffith-Jones, the punctilious prosecutor, launched his case by counting the novel's four-letter words. He recorded 57 instances of cardinal profanities, working his way down to three instances of "piss."

But the real heroes of the trial were the witnesses. All but one testified for the defence, treating the public to a pageant of great British minds defending the body and the physical. The earthier the content, the more exalted, hyper-articulate and unashamed their explications became - to say nothing of the spectacle, now as rare as a gamekeeper, of a book being taken so seriously.

'A study in compassion'

Lawrence expert Vivian de Sola Pinto was asked, "Are the four-letter words necessary to what Lawrence was trying to say?"

He answered, "I think they are. He had very strong views on that subject. He wished to purify those words, to cleanse them."

Stephan Hopkinson, editor of The London Churchman, declared that he thought the book was "a study in compassion and human tenderness."

At the conclusion of his testimony, Judge Laurence Byrne, a devout Catholic clearly offended by the book's depiction of adultery, asked: "Have you any objection to your children reading it?"

"Provided, again, my Lord, they discussed it with me - no. Only one of them, to my knowledge, has; and he found the book, on the whole, he said, rather dull."

Sarah Beryl Jones, classics mistress and senior librarian at Keighley Girls' Grammar School, tells Gerald Gardiner, lead barrister for the defence, that most girls "have been acquainted" with four-letter words "since the age of 10."

"Has Lady Chatterley's Lover any educational value?"

"Considerable value, if taken at the right age, which is normally after 17, because it deals openly and honestly with problems of sex which are very real to the girls themselves. Girls are very good at knowing what is good for them. Girls read what they want to read and they don't read what they don't want to read."

The most brilliant witness, many observers thought, was Richard Hoggart, senior lecturer in English at Leicester University. He insisted D. H. Lawrence was a puritan, in the original sense of one "heavy with conscience."

The prosecutor tried to mock the claim by reading several sexual passages, including one revering a man's testicles as a source of life: "'The strange weight of a man's balls …'" Mr. Griffith-Jones intoned. "Puritanical?"

"It is puritanical in its reverence."

"Reverence for the weight of a man's balls?"

"Indeed, yes."

A lesson still unlearned

The jury needed three hours to return a verdict of not guilty. But the problem never goes away.

Margaret Atwood's The Handmaid's Tale and the classic To Kill a Mockingbird have been challenged or "deshelved" in Toronto for profanity and the use of racial invective respectively. Oliver Twist has been reclassified as adult literature for depiction of abuse. At least 400 books are estimated to have been challenged or deshelved last year in the U.S. And the number is increasing.

"We see just as many people offended today as we saw in the 1920s," Barbara Jones, the newly appointed director of the Office for Intellectual Freedom at the American Library Association (ALA), explained over the telephone from Chicago. "In the United States we now have parents following what their children are reading into college."

The offended aren't only Christian conservatives, she added, but "women, African-Americans, Jews - and Muslims, for sure.

"I imagine the reason they want to ban books is that parents are increasingly anxious about the dangerous world they are putting their children into. And books are an easy target. It's not easy to remove bullying from the world. But if they see a book that has bullying in it, they think they can get rid of the problem by getting rid of the book. And economic anxiety just breeds a lot of protective censorship."

The answer isn't fewer books about, say, promiscuity, Dr. Jones feels, but more books about chastity. No wonder the ALA's slogan for Banned Books Week this year (Sept. 25-Oct. 2) was, "Think for yourself, and let others do the same."

There have been rewards for doing so, after all. All 200,000 copies of the 1960 edition of Lady Chatterley's Lover sold the day the jury reached its verdict. Three million more were sold in the ensuing three months.

The obvious conclusion might be worth remembering on the 50th anniversary of Chatterley's acquittal: Being shocked is not the same as being done harm.

Ian Brown is a feature writer for The Globe and Mail.

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